The Indigenous voice to parliament does not exist and yet it has already had a massive victory in entrenching its ability to intervene in advance, without limit, in any commonwealth decision.
Indigenous leaders have trumped the government’s legal advice, steamrolled cabinet and entrenched the voice’s power and scope of intervention with the wording and principles for the referendum.
In a remarkable show of power politics – admittedly with a sympathetic and emotionally charged executive – the Indigenous referendum working group refused to accept the government’s preferred wording aimed at trying to restrict impractical or unworkable conditions on day-to-day government.
The victory virtually destroyed any chance of Peter Dutton committing to bipartisan support, because the Liberals wanted the impact on working government restricted, and dramatically increased the chances of the referendum failing. Instead of limiting the impact, the wording and principles go further than the Uluru statement to give the voice power to “proactively” intervene “early” in commonwealth decision-making seeking written advice.
It also ensures that legal challenges can be launched if public servants do not advise the voice to parliament and executive government in advance of developing laws and policies.
What’s more, starting from such a radical position, any further change in the draft words forced through an even more radical Senate in the next six months gives the potential for a riskier proposition.
Anthony Albanese famously said it would be a brave government that ignored the advice of the voice to parliament and the Prime Minister’s own reaction to the referendum outline demonstrates that the voice is so powerful his government can’t resist it even before it comes into being.
As he unveiled the result of six months of consultations and legal advice, Albanese said his government was “all in” on the Indigenous voice and wanted to “run on the field and engage”.
But he and cabinet forfeited any contest with the Indigenous working group over impractical demands and legal challenges to commonwealth decisions and dumped advice of the Solicitor-General and the urgings of the Attorney-General just two weeks ago to restrict the scope of intervention in the public service.
Albanese is right to argue the voice does not have a right to veto, is not a third chamber of parliament and will not have funding, but he is wrong to say “This is a very modest request … to be recognised in our Constitution.”
As a former adviser on Indigenous recognition Greg Craven said on Thursday, “There are huge implications” and the proposal was “far worse than I had contemplated the worst position being”.
Albanese faced a choice of accepting a more radical referendum proposal than the government’s legal advice recommended or the prospect of political conflict with the Indigenous working group.
Albanese has ensured he will face a campaign claiming the voice is another layer of bureaucracy that will complicate government and not address the practical problems of Indigenous Australians.
He may be right, and emotion will carry the day as Australians seek to “do the right thing” but he should not be deluded about the difficulty of getting up a referendum without bipartisanship nor that he won’t be blamed for failure.
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